Now We Are Six: The Emerging Roberts Court

The Roberts Court has now completed its sixth year. This benchmark invites comparisons with earlier Courts. Earl Warren was appointed as Chief Justice in 1953. It was not until nine years later, in 1962, that the Warren Court fully emerged. That was the year in which Felix Frankfurter left the Court, Arthur Goldberg took his place, and the balance on the Court tipped to the more liberal justices. Opinions from the mid sixties—Gideon v. Wainwright (1963) and Reynolds v. Sims (1964) come to mind—mark the Warren Court at flood tide.

William Rehnquist was confirmed as Chief Justice in 1986. Again, it was about nine years, in 1995, before the Rehnquist Court emerged full blown. Rehnquist, so often a lone dissenter before 1986, now had company in the likes of Antonin Scalia and Clarence Thomas. Thus, in the mid nineties, the Rehnquist Court was making its distinctive mark on the Court’s jurisprudence. Illustrative are United States v. Lopez (1995), the first time in sixty years that the Court had declared an act of Congress to be beyond that body’s power to regulate commerce, and Agostini v. Felton (1997), one of a series of cases in which the increasingly conservative Court began dismantling the wall of separation between church and state. Now comes the Roberts Court. Until the appointment of John Roberts as Chief Justice, there had been no vacancy on the Court for eleven years. Then a succession of events changed the face of the Court. Since 2005, we have seen the departure of four justices—Rehnquist, O’Connor, Souter, and Stevens—and the arrival of four new justices—Roberts, Alito, Sotomayor, and Kagan. It has now been six years since Chief Justice Roberts took his seat. Recalling the stories of the Warren and Rehnquist Courts, are we two thirds of the way through another nine year cycle? Is the Roberts Court beginning to take shape? What can we say about this Court?

Out of Infancy: The Roberts Court at Seven

Seven years can see the Supreme Court travel a long way. In 1935 the Court invalidated the National Industrial Recovery Act, a centerpiece of the New Deal’s efforts to combat the Depression. This was but one of a series of cases in which the Court sought to entrench old notions about government’s role in regulating the nation’s economy. Seven years later, the Court (seven of whose members had been appointed since 1935), decided Wickard v. Filburn, upholding the Agricultural Adjustment Act’s penalty imposed on a farmer who grew wheat for consumption on his own farm. In seven years, the Court had gone from close judicial oversight of Congress’s decisions about the national economy to something close to complete deference.

The Mandatory Core of Section 4 of the Federal Arbitration Act

IN April 2010, the U.S. Supreme Court will hear oral arguments in Rent-a-Center v. Jackson, a case that has profound implications for the future of American dispute resolution. The issue before the Court is not the merits of Antonio Jackson’s civil rights lawsuit against his former employer, nor even the validity of the mandatory arbitration contract that he was required to sign before he could begin work. Instead, the Court must decide whether Jackson—and the hundreds of millions of other employees, consumers, and franchisees who are subject to mandatory arbitration clauses—have a non-waivable right to challenge the fairness of such provisions in federal court. Because the Federal Arbitration Act (“FAA”) allows courts to nullify one-sided arbitration clauses under the unconscionability doctrine, the judiciary has traditionally served as a bulwark against harsh dispute resolution terms. Yet the contract at issue in Rent-a-Center expressly gives the arbitrator, not courts, the sole authority to decide whether “any part of this Agreement is void.” If the Court enforces this clause, it will quickly become boilerplate in many standard form contracts, giving arbitrators the exclusive right to determine whether an arbitration clause is unconscionable, and limiting the judiciary’s role to little more than rubber-stamping motions to compel arbitration.

Every court that has grappled with a similar clause, including the Ninth Circuit in Rent-a-Center, has assumed that parties can delegate the issue of an arbitration clause’s validity to the arbitrator as long as there is “clear and unmistakable” evidence that they wanted to do so. The source of the “clear and unmistakable” criterion is based on dicta in several Supreme Court decisions. These cases begin by noting that because arbitration is, first and foremost, a matter of contract, parties enjoy the freedom to customize the process. Thus parties can agree to arbitrate arbitrability: that is, they can make a contract that entrusts the arbitrator with defining the scope or rules of arbitration. Finally, even though there is a presumption that parties want courts, not arbitrators, to resolve these issues, this presumption will yield to a strong indication to the contrary.